Topsoil exemption from Environmental Permit


The situation with regard to the use of manufactured topsoil, as opposed to its production, has been somewhat unclear in the past. The UK government has recently recognised that it is not sensible to require all users of manufactured topsoil to obtain an environmental permit, since many of them will be simply carrying out relatively small-scale landscaping projects. Hence, the Environment Agency has recently announced that up to 1000 tonnes of manufactured topsoil can be used on a site, without the need for an environmental permit (regulatory position statement 190, published in October 2015).

For transfer of excavated materials between sites, other requirements may apply.

Excavated topsoil that either requires treatment before further use, or cannot be used at site as which it is produced, is classed as waste. A manufactured topsoil that incorporates waste material is also classed as waste.

Typically, a company that treats or stores such material will require an Environment Agency permit.

Standard permits, following standard rules SR2010 No.11 and SR2010 no12, apply to the treatment of waste to produce soils, soil substitutes and aggregates (the former set of rules is concerned with mobile plant). Standard rules SR2010 No.9 and SR2010 No.10 apply to the use of waste (including manufactured topsoil) for reclamation, restoration or improvement of land.

Where applicable, environmental permit exemptions can be self registered here. Care should be taken to understand the guidance and ensure all criteria are met for the exemption to apply.

When does the exemption to obtaining an environmental permit for topsoil apply?

Apart from the 1000 tonnes per site limit, a number of?other conditions must be met for a user to be exempt from the need to obtain an environmental permit for using manufactured topsoil:

  1. The land is not being used, or expected to be used, for agricultural or horticultural use (including home gardening).
  2. Any manufactured topsoil made from waste should have been produced in accordance with BS 3882:2015, in a plant with an SR2010 no11 or SR2010 no12 environmental permit, or a suitable bespoke alternative.
  3. The topsoil is to be covered with a vegetative layer.
  4. Any manufactured topsoil is produced from non-waste materials (such as PAS100 compliant compost), or from permitted wastes (the latter include soil and stones from greenfield sites, chalk, sand, clay, horse manure, spent mushroom compost, and soil washings from fruit, vegetables and sugar beet).

PAS100 Compliant Compost

PAS100, a British Standard, was produced by the BSI in collaboration with the recycling charity WRAP (Waste and Resources Action Programme). The document states that only biodegradable materials should be incorporated into approved compost, and that such material must have been continually stored in a source-segregated manner, not mixed with other waste.

Substances that are polluting, or potentially toxic, are not permitted. Examples are sewage waste and wood that has treated with paints or preservatives. Testing is carried out for pathogens such as E. coli, heavy metals, weed seed, physical contaminants and adverse effects on tomato plant growth. The latter effects may be caused by residual herbicides, such as aminopyralid and clopyralid, which can be sprayed onto pasture or hay, pass through horses, and end up in the manure.

BS3882:2015 for topsoil

This recently issued British Standard gives information on the sampling, analysis and required specific characteristics for topsoil. The standard gives information about the correct handling of topsoil, so its degradation during movement is minimised. Sellers of BS3882 compliant topsoil are required to provide all the required analytical results on the soil to the purchaser. The majority of the compliant topsoil is classified as multipurpose. However, specific purpose soils, such as acidic soil, calcareous soil and low fertility soil are also designated by the standard. These have specialist applications for particular plants or ecosystems.

BS3882:2015 differs from earlier versions of the standard in various ways:

  • The extractable potassium upper limit has been changed from 900mg/l to 1500mg/l.
  • The electrical conductivity upper limit has been changed from 2800 to 3300?S/cm.
  • There is no longer any requirement for an exchangeable sodium test.
  • There are various changes to the specific purpose topsoil category.

The relaxation of these limits should allow more soils to reach the standard, without having a significantly adverse effect on plant growth.

Standard Environmental Permits for the use of topsoil

There will be times when the user of topsoil will still require an environmental permit, for instance if they are using over 1000 tonnes of waste at a site. A permit may be issued in accordance with standard rules SR2010 no9, ?Use of waste for reclamation, restoration or improvement of land.? These rules apply to up to 50,000 tonnes of waste, while the similar regulations, SR2010 no10, apply up to 100,000 tonnes.
The standard rules SR2010no9 indicate minimum distances for the site, such as:

    • 10m from a watercourse.
    • 500m from a European site, Ramsar site or a Site of Special Scientific Interest (SSSI).
    • 250m from great crested newts (where their presence is linked to a breeding pond by good habitat).
    • 50m from any spring or well (also some boreholes).
    • 50m from various categories of nature reserve, ancient woodland, or ancient monuments.
    • 50m from a site that has species or habitats protected under the Biodiversity Action Plan (if the Environment Agency considers the activity a risk to such species or habitats).

The site must also not be in a groundwater source Protection Zone 1 or 2. The thickness of the waste layer on the land must not exceed 2 metres.
The standard rules include information on the required record keeping, monitoring, reporting requirements and the control of odour and noise. Operators are required to keep accurate records of the waste handled, and to submit quarterly reports to the Environment Agency.

A written management system, incorporating measures to keep the risk of pollution to a minimum is required. ?Sufficient competent persons and resources? must be used. Records must be kept to demonstrate compliance with these rules. It?s not good enough to assert that an employee is experienced and competent; there must be written records to demonstrate such competence.

The standard rules incorporate a list of waste types that may be used. Some types of waste are forbidden entirely: hazardous wastes, liquid wastes, and also dusts, powders and loose fibres.
Manufactured topsoils are given the waste code 19 12 12, and designated as ?soil substitutes other than that containing dangerous substances only?, in the somewhat convoluted language of the rules. Soils and stones from municipal waste can also be used: they are given the waste code 20 02 02. Other soils and stones (excluding those from excavated sites) are given the waste code 17 05 04.
There is a significant saving in fees and administrative costs if the amount of manufactured topsoil used on a site can be kept below the 1000 tonnes limit, so that an environmental permit is not required.


Useful Links

Environment Agency, ?Using manufactured topsoil for recovery operations?, Regulatory Position Statement 190 (2015).
Environment Agency,?SR2010 no9: use of waste for reclamation, restoration and improvement of land?, (2012).
WRAP, ?PAS100 Compost Specification?, (2011).

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